w w w . L a w y e r S e r v i c e s . i n



V.A. Viju v/s Manappuram General Finance & Leasing Limited Represented by K. Dinesh & Another


Company & Directors' Information:- L & T FINANCE LIMITED [Amalgamated] CIN = U65990MH1994PLC083147

Company & Directors' Information:- S P FINANCE PRIVATE LIMITED [Active] CIN = U65990MH1979PTC021790

Company & Directors' Information:- MANAPPURAM FINANCE LIMITED [Active] CIN = L65910KL1992PLC006623

Company & Directors' Information:- V L S FINANCE LIMITED [Active] CIN = L65910DL1986PLC023129

Company & Directors' Information:- L R N FINANCE LIMITED [Active] CIN = U65921TN1992PLC089288

Company & Directors' Information:- S M FINANCE LTD [Active] CIN = L65999TG1984PLC004526

Company & Directors' Information:- J R D FINANCE LTD [Active] CIN = L65999WB1993PLC058107

Company & Directors' Information:- B R D FINANCE LIMITED [Active] CIN = U65910KL1995PLC009430

Company & Directors' Information:- T C I FINANCE LIMITED [Active] CIN = U65920MH1973PLC017042

Company & Directors' Information:- A. V. B. FINANCE PRIVATE LIMITED. [Active] CIN = U65993DL1992PTC049818

Company & Directors' Information:- S M L FINANCE LIMITED [Active] CIN = U65910KL1996PLC010648

Company & Directors' Information:- S B FINANCE PVT LTD [Strike Off] CIN = U65921TG1988PTC008268

Company & Directors' Information:- INDIA FINANCE LTD. [Active] CIN = L65110WB1984PLC050214

Company & Directors' Information:- LEASING FINANCE INDIA LTD [Active] CIN = U65910WB1985PLC039944

Company & Directors' Information:- V G LEASING AND FINANCE LIMITED [Active] CIN = U65910PB1995PLC016434

Company & Directors' Information:- J J FINANCE CORPORATION LTD [Active] CIN = L65921WB1982PLC035092

Company & Directors' Information:- G V S FINANCE PVT LTD [Strike Off] CIN = U65921TG1988PTC008269

Company & Directors' Information:- G T P FINANCE LIMITED [Active] CIN = U65921TZ1991PLC003149

Company & Directors' Information:- A R T LEASING LIMITED [Active] CIN = U65910KL1990PLC005904

Company & Directors' Information:- LEASING CORPORATION OF INDIA LIMITED [Strike Off] CIN = U65910MH1985PLC036022

Company & Directors' Information:- S R K FINANCE PRIVATE LIMITED [Active] CIN = U65910UP1994PTC016038

Company & Directors' Information:- P K LEASING & FINANCE LTD [Active] CIN = L65910WB1992PLC055895

Company & Directors' Information:- G D L LEASING AND FINANCE LIMITED [Active] CIN = L74899DL1994PLC057107

Company & Directors' Information:- K Z LEASING AND FINANCE LIMITED [Active] CIN = L65910GJ1986PLC008864

Company & Directors' Information:- R N FINANCE LIMITED [Active] CIN = U74899DL1988PLC034289

Company & Directors' Information:- G A LEASING PRIVATE LIMITED [Active] CIN = U74899DL1992PTC051023

Company & Directors' Information:- J R D FINANCE LTD [Active] CIN = U65999WB1993PLC058107

Company & Directors' Information:- D C FINANCE AND LEASING COMPANY P LTD [Active] CIN = U67120RJ1989PLC005172

Company & Directors' Information:- C K G FINANCE PRIVATE LIMITED [Active] CIN = U65910KL1996PTC010147

Company & Directors' Information:- L N FINANCE LTD [Active] CIN = U65923WB1991PLC052876

Company & Directors' Information:- H S B LEASING LTD [Active] CIN = U65921CH1992PLC012470

Company & Directors' Information:- R K FINANCE LTD [Active] CIN = L65921WB1983PLC035896

Company & Directors' Information:- P S S LEASING PRIVATE LIMITED [Active] CIN = U65910PB1990PTC010922

Company & Directors' Information:- V S G LEASING AND FINANCE COMPANY LIMITED [Active] CIN = U65910PB1991PLC011505

Company & Directors' Information:- V P C L FINANCE LIMITED [Active] CIN = U65920TG1996PLC023172

Company & Directors' Information:- V I P LEASING AND FINANCE PRIVATE LIMITED [Dormant under section 455] CIN = U74899DL1992PTC047135

Company & Directors' Information:- J S M FINANCE PVT LTD [Active] CIN = U74140MP1995PTC009542

Company & Directors' Information:- I & D FINANCE PRIVATE LIMITED [Strike Off] CIN = U65191TN1991PTC021369

Company & Directors' Information:- J B LEASING PRIVATE LIMITED [Active] CIN = U74999WB2009PTC210292

Company & Directors' Information:- K C M LEASING AND FINANCE PRIVATE LIMITED [Active] CIN = U65910DL1992PTC047317

Company & Directors' Information:- L N FINANCE PVT LTD [Active] CIN = U65929AS1992PTC003766

Company & Directors' Information:- N B A FINANCE LIMITED [Strike Off] CIN = U74899DL1993PLC052393

Company & Directors' Information:- T P D FINANCE LIMITED [Strike Off] CIN = U67120RJ1994PLC008051

Company & Directors' Information:- R G L FINANCE COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1983PTC015809

Company & Directors' Information:- S K B FINANCE LIMITED [Amalgamated] CIN = U65999WB1996PLC082317

Company & Directors' Information:- J F C LEASING PRIVATE LIMITED [Active] CIN = U74899DL1988PTC031049

Company & Directors' Information:- P N F LEASING AND FINANCE LIMITED [Active] CIN = U65921DL1997PLC086022

Company & Directors' Information:- K C LEASING LIMITED [Active] CIN = U65921PB1991PLC011768

Company & Directors' Information:- R K L LEASING PVT LTD [Active] CIN = U67120WB1986PTC040200

Company & Directors' Information:- J V FINANCE PRIVATE LIMITED [Strike Off] CIN = U74899DL1985PTC067873

Company & Directors' Information:- L C J FINANCE PVT. LTD. [Active] CIN = U65921WB1995PTC068809

Company & Directors' Information:- A D FINANCE & LEASING PVT LTD [Active] CIN = U65910WB1985PTC039909

Company & Directors' Information:- H L T FINANCE PRIVATE LIMITED [Strike Off] CIN = U65921DL1996PTC078128

Company & Directors' Information:- J D LEASING PRIVATE LIMITED [Strike Off] CIN = U65910TG1994PTC018792

Company & Directors' Information:- R N C P FINANCE LTD. [Dissolved] CIN = U67120WB1995PLC072339

Company & Directors' Information:- T T FINANCE LIMITED [Amalgamated] CIN = U67120DL1986PLC023168

Company & Directors' Information:- G S L LEASING AND FINANCE LIMITED [Under Process of Striking Off] CIN = U65910TG1994PLC018867

Company & Directors' Information:- A R M LEASING LIMITED [Dissolved] CIN = U65993WB1980PLC032506

Company & Directors' Information:- M M V R FINANCE LIMITED [Active] CIN = U65921TZ1997PLC007705

Company & Directors' Information:- D B FINANCE PRIVATE LIMITED [Active] CIN = U65191TN1989PTC016705

Company & Directors' Information:- C H P FINANCE PVT LTD [Active] CIN = U65921PB1992PTC012788

Company & Directors' Information:- R A FINANCE & LEASING COMPANY PVT LTD [Active] CIN = U65910WB1993PTC057698

Company & Directors' Information:- N E LEASING AND FINANCE PVT LTD [Active] CIN = U65921AS1994PTC004267

Company & Directors' Information:- S L B P FINANCE PRIVATE LIMITED [Active] CIN = U74899DL1990PTC041694

Company & Directors' Information:- R S FINANCE PVT LTD [Active] CIN = U65191WB1988PTC044144

Company & Directors' Information:- I C FINANCE PRIVATE LIMITED [Active] CIN = U65921UP1989PTC011236

Company & Directors' Information:- A TO Z LEASING AND FINANCE PRIVATE LIMITED [Amalgamated] CIN = U65910DL1992PTC047460

Company & Directors' Information:- K M LEASING LIMITED [Active] CIN = U65910UP1984PLC006489

Company & Directors' Information:- A R R FINANCE AND LEASING PRIVATE LIMITED [Active] CIN = U65910TN1990PTC019792

Company & Directors' Information:- V K FINANCE PVT LTD [Strike Off] CIN = U67120WB1991PTC052140

Company & Directors' Information:- GENERAL LEASING LTD [Active] CIN = U65921CH1991PLC011244

Company & Directors' Information:- C AND N FINANCE PRIVATE LIMITED [Strike Off] CIN = U65921DL1998PTC094290

Company & Directors' Information:- C D R FINANCE LIMITED [Strike Off] CIN = U65910TG1995PLC022237

Company & Directors' Information:- J R FINANCE LIMITED [Active] CIN = U65921PB1996PLC017699

Company & Directors' Information:- I C S FINANCE LIMITED [Strike Off] CIN = U65921TZ1987PLC001991

Company & Directors' Information:- D D S FINANCE PRIVATE LIMITED [Strike Off] CIN = U65910DL1996PTC076165

Company & Directors' Information:- K V L FINANCE LIMITED [Strike Off] CIN = U65191TN1989PLC016715

Company & Directors' Information:- D A S FINANCE PVT LIMITED [Strike Off] CIN = U65921PB1993PTC012888

Company & Directors' Information:- U B FINANCE PRIVATE LIMITED [Strike Off] CIN = U74899DL1992PTC051300

Company & Directors' Information:- V L G FINANCE PRIVATE LIMITED [Strike Off] CIN = U65910AP1997PTC027952

Company & Directors' Information:- E M S FINANCE PRIVATE LIMITED [Strike Off] CIN = U65921TZ1986PTC001789

Company & Directors' Information:- G Y LEASING AND FINANCE PRIVATE LIMITED [Amalgamated] CIN = U74899DL1993PTC051553

Company & Directors' Information:- K A R LEASING AND FINANCE CO PRIVATE LIMITED [Strike Off] CIN = U71301DL1995PTC070403

Company & Directors' Information:- P R LEASING PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC064947

Company & Directors' Information:- T D M FINANCE COMPANY PRIVATE LIMITED [Active] CIN = U65923KL1997PTC011601

Company & Directors' Information:- S. F. FINANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U65921PB1996PTC018702

Company & Directors' Information:- D S L FINANCE PRIVATE LIMITED [Active] CIN = U65921TG1996PTC023898

Company & Directors' Information:- R D P FINANCE PRIVATE LIMITED [Active] CIN = U65929DL1997PTC089092

Company & Directors' Information:- S R K C FINANCE LIMITED [Amalgamated] CIN = U65999TZ1989PLC002445

Company & Directors' Information:- R K N FINANCE PRIVATE LIMITED [Strike Off] CIN = U65191TN1997PTC038377

Company & Directors' Information:- H A FINANCE PRIVATE LIMITED [Strike Off] CIN = U65993DL1987PTC027064

Company & Directors' Information:- P T H FINANCE & LEASING PRIVATE LIMITED [Strike Off] CIN = U00733BR1997PTC008055

Company & Directors' Information:- T M G FINANCE AND LEASING PRIVATE LIMITED [Active] CIN = U65910KL1996PTC010760

Company & Directors' Information:- V V A FINANCE LTD [Active] CIN = U65993WB1984PLC037171

Company & Directors' Information:- Y B FINANCE PRIVATE LIMITED [Strike Off] CIN = U65921CH1996PTC017745

Company & Directors' Information:- D N LEASING AND FINANCE LTD. [Strike Off] CIN = U65910DL1988PLC032599

Company & Directors' Information:- T L LEASING AND FINANCE PRIVATE LIMITED [Active] CIN = U65910DL1996PTC081814

Company & Directors' Information:- D G L FINANCE LTD [Strike Off] CIN = U67120TG1993PLC015604

Company & Directors' Information:- K P S LEASING PRIVATE LIMITED [Active] CIN = U65910DL1997PTC089971

Company & Directors' Information:- K D S LEASING AND FINANCE PRIVATE LIMITED [Active] CIN = U74899DL1992PTC047176

Company & Directors' Information:- M M LEASING LTD [Active] CIN = U65921CH1986PLC007137

Company & Directors' Information:- C S LEASING PRIVATE LIMITED [Active] CIN = U74899DL1991PTC046382

Company & Directors' Information:- N S LEASING AND FINANCE LIMITED [Active] CIN = U65993DL1989PLC036831

Company & Directors' Information:- M S R FINANCE PVT LTD [Strike Off] CIN = U65191TN1989PTC016789

Company & Directors' Information:- S S P FINANCE PRIVATE LIMITED [Strike Off] CIN = U65191TN1987PTC014526

Company & Directors' Information:- A S LEASING AND FINANCE LIMITED [Active] CIN = U65910TG1994PLC018840

Company & Directors' Information:- C R N FINANCE PRIVATE LIMITED [Strike Off] CIN = U74899DL1994PTC062802

Company & Directors' Information:- I FINANCE COMPANY LIMITED [Active] CIN = U67110DL2011PLC212268

Company & Directors' Information:- H AND Z FINANCE PRIVATE LIMITED [Active] CIN = U67190MH1995PTC093153

Company & Directors' Information:- Y AND K FINANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL1985PTC019837

Company & Directors' Information:- S L P FINANCE PRIVATE LTD. [Strike Off] CIN = U65923DL1985PTC021970

Company & Directors' Information:- V M FINANCE LIMITED [Strike Off] CIN = U65910PB1996PLC018339

Company & Directors' Information:- D S K FINANCE LIMITED [Strike Off] CIN = U65910UP1988PLC010317

Company & Directors' Information:- V K R LEASING AND FINANCE PRIVATE LIMITED [Strike Off] CIN = U65910DL1994PTC058631

Company & Directors' Information:- G B V FINANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U65110UP1988PTC010219

Company & Directors' Information:- K AND S FINANCE AND LEASING PRIVATE LIMITED [Strike Off] CIN = U65921UP1992PTC014578

Company & Directors' Information:- B H FINANCE PRIVATE LIMITED [Strike Off] CIN = U65922KA1995PTC018390

Company & Directors' Information:- M .R .S . FINANCE LIMITED [Strike Off] CIN = U65929DL1995PLC067184

Company & Directors' Information:- H D FINANCE LTD [Strike Off] CIN = U67120DL1986PLC023675

Company & Directors' Information:- P R K FINANCE P LTD [Strike Off] CIN = U65191TN1995PTC033478

Company & Directors' Information:- DINESH CO PVT LTD [Active] CIN = U17111WB1951PTC019839

Company & Directors' Information:- T AND C FINANCE LIMITED [Strike Off] CIN = U67120RJ1996PLC012576

Company & Directors' Information:- D A LEASING AND FINANCE PRIVATE LIMITED [Strike Off] CIN = U74899DL1994PTC057355

Company & Directors' Information:- W S FINANCE PRIVATE LIMITED [Strike Off] CIN = U65192UP1996PTC020243

Company & Directors' Information:- S A C FINANCE COMPANY PVT LTD [Active] CIN = U65999WB1985PTC039002

Company & Directors' Information:- S B LEASING PRIVATE LIMITED [Active] CIN = U74899DL1987PTC028630

Company & Directors' Information:- M G LEASING PVT LTD [Strike Off] CIN = U65921CH1987PTC007342

Company & Directors' Information:- C C FINANCE PRIVATE LIMITED [Strike Off] CIN = U65191TN1997PTC037805

Company & Directors' Information:- R. S. O. FINANCE AND LEASING PVT. LTD. [Strike Off] CIN = U65921UP1995PTC017374

Company & Directors' Information:- S R B FINANCE LIMITED [Strike Off] CIN = U65910UP1988PLC010045

Company & Directors' Information:- P V FINANCE PRIVATE LIMITED [Strike Off] CIN = U65993DL1987PTC027270

Company & Directors' Information:- R V S FINANCE PRIVATE LIMITED [Strike Off] CIN = U65990KA1995PTC018436

Company & Directors' Information:- M. A. FINANCE AND LEASING PRIVATE LIMITED [Strike Off] CIN = U65910UP1995PTC018442

Company & Directors' Information:- G M G FINANCE AND LEASING PRIVATE LIMITED [Strike Off] CIN = U65921UP1986PTC008359

Company & Directors' Information:- K Y LEASING AND FINANCE PRIVATE LIMITED [Strike Off] CIN = U65910DL1997PTC085122

Company & Directors' Information:- P AND B FINANCE PVT LTD [Strike Off] CIN = U99999MH1986PTC038841

Company & Directors' Information:- B B P FINANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U65921PB1996PTC018183

Company & Directors' Information:- K. B. H. FINANCE AND LEASING COMPANY LIMITED [Strike Off] CIN = U65993UP1995PLC018842

Company & Directors' Information:- A E FINANCE PRIVATE LIMITED [Active] CIN = U65999TZ1990PTC002905

Company & Directors' Information:- R B S LEASING PRIVATE LIMITED [Strike Off] CIN = U65910KA1984PTC005947

Company & Directors' Information:- B H K FINANCE AND LEASING COMPANY LIMITED [Under Process of Striking Off] CIN = U67120UP1996PLC020882

Company & Directors' Information:- L R FINANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U65910UP1988PTC009758

Company & Directors' Information:- S B M FINANCE LIMITED [Strike Off] CIN = U65921PB1994PLC014374

Company & Directors' Information:- T A S FINANCE PVT LTD [Strike Off] CIN = U65191TN1990PTC018654

Company & Directors' Information:- P R R LEASING COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1994PTC059944

Company & Directors' Information:- D AND O FINANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL1993PTC054788

Company & Directors' Information:- H R P FINANCE PRIVATE LIMITED [Strike Off] CIN = U65921PB1995PTC015715

Company & Directors' Information:- P T R FINANCE PRIVATE LIMITED [Strike Off] CIN = U65191TN1989PTC016795

Company & Directors' Information:- B & S FINANCE PVT LTD [Strike Off] CIN = U65191TN1988PTC015491

Company & Directors' Information:- H S B FINANCE PVT LTD [Strike Off] CIN = U67120RJ1996PTC012119

Company & Directors' Information:- M. J. S. FINANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U65921PB1971PTC003049

Company & Directors' Information:- K R K LEASING & FINANCE COMPANY LIMITED [Strike Off] CIN = U65910DL1996PLC083271

Company & Directors' Information:- A R FINANCE PVT LTD [Strike Off] CIN = U65921PB1989PTC009778

Company & Directors' Information:- A M G FINANCE & LEASING PRIVATE LIMITED [Strike Off] CIN = U65910DL1996PTC080060

Company & Directors' Information:- K G FINANCE LIMITED [Strike Off] CIN = U65910TZ1982PLC001219

Company & Directors' Information:- S AND Z FINANCE PRIVATE LIMITED [Strike Off] CIN = U65923PN1997PTC106520

Company & Directors' Information:- H S N FINANCE PVT LTD [Strike Off] CIN = U67120PB1993PTC013900

Company & Directors' Information:- H L C FINANCE AND LEASING PVT LTD [Strike Off] CIN = U67120PB1993PTC013901

Company & Directors' Information:- G N FINANCE PVT LTD [Strike Off] CIN = U65990MH1981PTC024294

Company & Directors' Information:- A E C LEASING AND FINANCE PRIVATE LIMITED [Strike Off] CIN = U65910DL1986PTC024068

Company & Directors' Information:- J P T LEASING AND FINANCE PVT LTD [Strike Off] CIN = U65910PB1989PTC009654

Company & Directors' Information:- V K B LEASING & FINANCE PRIVATE LIMITED [Strike Off] CIN = U65910TG1995PTC021675

Company & Directors' Information:- C S FINANCE PRIVATE LIMITED [Strike Off] CIN = U65910GJ1987PTC009799

Company & Directors' Information:- GENERAL CORPORATION LIMITED [Not available for efiling] CIN = U99999MH1926PTC001261

Company & Directors' Information:- GENERAL CORPORATION LIMITED [Dissolved] CIN = U99999MH1946PLC007742

    Crl. Rev. Pet. No. 410 of 2007

    Decided On, 03 December 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE N. ANIL KUMAR

    For the Petitioner: Latha Prabhakaran, K.M. Jamaludheen, Advocate. For the Respondents: R1, Sabu S. Kallaramoola, R2, M.S. Breez, Senior Public Prosecutor.



Judgment Text

1. This criminal revision petition is directed against the judgment dated 29.12.2006 rendered by the third Additional Sessions Court, (Ad hoc) Fast Track-I, Thrissur, in Crl.Appeal No.599 of 2004, whereby the learned third Additional Sessions Judge dismissed the appeal, confirming the conviction and sentence for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (hereinafter referred to as 'the N.I.Act') rendered by the trial court against the revision petitioner/accused to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months. If the fine amount is realised, the trial court ordered Rs.90,000/- as compensation payable to the complainant under Section 357(1) of the Cr.P.C.2. The revision petitioner was the accused in S.T.No.612/99 on the file of the Chief Judicial Magistrate Court, Thrissur and the appellant in Crl.Appeal No.599/2004 on the file of the third Additional Sessions Court, (Ad hoc), Fast TrackCrl. I, Thrissur. The 1st respondent filed a complaint before the trial court alleging commission of the offence punishable under Section 138 of the N.I.Act against the accused. Upon consideration of the complaint, the learned Magistrate is prima facie satisfied that the case is made out against the accused. Hence, the learned Magistrate took cognizance of the offence under Section 138 of the N.I.Act and the case was taken on file as S.T.No.612/99. Parties are hereinafter referred to as the 'complainant' and 'accused' according to their status in the court below unless otherwise stated.3. It is the case of the complainant that the accused had entered into a lease agreement with the complainant company on 09.05.97. Consequent to the agreement, the vehicle bearing registration No.KL 7 Q 7646 was leased out to the accused on agreeing to pay a monthly rent of Rs.11,505/- to the company for 48 months without any default. When the accused committed default in paying the installment, the company repossessed the vehicle and sold it for Rs.2,50,000/-. The balance amount due from the accused was Rs.76,247.99. When the company requested the accused to pay the amount, he issued a cheque in favour of the complainant for a legally enforceable debt. When the said cheque was presented for encashment it was dishonoured for the reason 'insufficient fund'. The complainant sent a notice to the accused demanding the amount covered under the cheque. The accused received the notice. He had neither sent any reply nor paid the amount covered under the cheque.4. On service of summons, the accused appeared before the trial court. Particulars of the offence were read over and explained to the accused, to which the accused pleaded not guilty. Thereafter, PW1 was examined and marked Exts.P1 to P9 on the side of the prosecution. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of the Cr.P.C. for the purpose of enabling him to explain any circumstance appearing in the evidence against him. He denied all the incriminating circumstances appearing in the evidence against him. DW1 was examined and marked Exts.D1 to D8 on the side of the accused.5. On appreciation of the evidence, the learned Magistrate held that the execution of the cheque was proved by the complainant and that the cheque was dishonoured for the reason 'insufficient fund'. The complainant issued statutory notice calling upon the accused to pay the amount within fifteen days from the date of receipt of the statutory notice. The amount was not paid within the statutory period. Hence, the learned Magistrate concluded that the cheque was issued by the accused for the discharge of debt or liability.6. Heard Smt.Latha Prabhakaran, the learned counsel for the revision petitioner, Sri.Sabu.S, the learned counsel for the 1st respondent and Sri.M.S.Breez, the learned Senior Public Prosecutor for the 2nd respondent-State.7. In order to determine the question whether the offence punishable under Section 138 of the N.I.Act is made out against the accused, it is necessary to examine the Penal provision of Section 138 of the N.I.Act and the presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the N.I.Act. Section 118 of the N.I.Act provides certain presumptions to be raised laying down some special rules of evidence relating to presumptions. The presumption, therefore, is a matter of principle to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments in financial transactions. Section 118 of the N.I.Act provides presumptions to be raised until the contrary is proved, (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp, and (vii) as to holder being a holder in due course. That apart, Section 139 of the N.I.Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 of the N.I.Act for the discharge, in whole or in part, of any debt or other liability. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the N.I.Act, it becomes evident that in a trial under Section 138 of the N.I.Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. Needless to say that as and when the complainant discharges the burden to prove that the cheque was executed by the accused, the rules of presumptions under Sections 118 and 139 of the N.I.Act are very much available to the complainant and the burden shifts to the accused. However, this presumption is rebuttable. Under the circumstances, it is the duty of the accused to adduce evidence before the court to show that the cheque was not supported by consideration and that there was no debt or liability to be discharged as alleged. It is necessary on the part of the accused to set up a probable defence for getting the burden of proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the complainant.8. The accused was examined as DW1 before the trial court. He admitted execution of Ext.P3 lease agreement and the entrustment of the vehicle as per the agreement. According to DW1, he had given signed blank cheques to the complainant and the complainant might have utilized one of the cheques to file the present case.9. In this case, A.V.Unnikrishnan, Junior Assistant of the complainant company was examined as PW1. Ext.P4 cheque dated 21.7.98 is for an amount of Rs.76,247.99. Ext.P5 memorandum issued from the bank would show that the cheque was dishonoured on the ground that there was no sufficient amount in the account of the accused. Ext.P6 dated 3.11.98 is the intimation given from the bank to the complainant regarding the dishonour of the cheque. Thereafter, Ext.P7 Lawyer notice dated 3.11.98 was issued to the accused. The accused received the notice on 11.11.98. The complaint was filed within the time on 23.12.98.10. A definite case was put up by the accused in this case that the cheque in question was issued as a security at the time of entering into the agreement. It is also contended that the complainant had instituted Ext.D1 suit against the accused for realisation of an amount of Rs.76,247.99. The trial court dismissed the suit by way of Ext.D2. The learned counsel for the revision petitioner mainly relied on Ext.P4 cheque in Ext.D2 and contended that there was no legally enforceable debt.11. The accused admitted execution of Ext.P4 cheque in favour of the complainant. Regarding the amount claimed under Ext.P4 cheque, the complainant filed Ext.D1 suit for recovery of money before the Munsiff Court, Thrissur. The amount covered under Ext.D1 is Rs.76,247.99. The cheque No.178931 is dated 21.7.98 drawn on South Indian Bank Ltd., Meladoor Branch. The certified copy of Ext.P4 cheque No.178931 in this case is marked as Ext.A5 in Ext.D2 judgment. Ext.D1 plaint was presented before the court on 15.10.99. Item No.2 in the list of documents as per Ext.D1 is the cheque No.178931 dated 21.7.98. Crl.M.P.No.6082/98 was filed by the complainant against the accused before the Chief Judicial Magistrate Court, Thrissur alleging commission of the offence punishable under Section 138 of the N.I.Act on 23.12.98. In paragraph 3 of the complaint, it is stated that the accused came down to the complainant's office at Thrissur and issued a cheque for Rs.76,247.99 bearing No.178931 dated 21.7.98 drawn on South Indian Bank Ltd., Meladoor Branch in favour of the complainant in discharge of the existing liability to the complainant. It is clear that prosecution initiated under Section 138 of the N.I.Act on 23.12.98 and a civil suit was later filed on 15.10.99. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceeding at the same time. Both the proceedings, thus, can run parallel. The legal position in this regard is settled in Sh.Vishnu Dutt Sharma v. Smt.Daya Sapra [2009 (4) KHC 581].12. By virtue of Ext.D2 judgment, the court held in page 9 of the judgment as follows:“Since defendant was not in possession of the property subsequent to 2-11-97 he is not bound to pay the amount covered by Ext.A2 though the agreement is a lease which clearly shows that so long as lessee is in possession then only he will be entitled to pay the rent and other expenses. Now it has come out in evidence that defendant is the registered owner. Even though plaintiff would say that it is owner of the vehicle nothing has been brought out in evidence to establish the fact that plaintiff was owner of the vehicle. Ext.A4 valuation certificate of the insurance Surveyor says that defendant is the registered owner whereas plaintiff is stated as the finance company. It does not state that plaintiff is the owner of the vehicle. If that be so defendant is the registered owner so that the owner cannot lease the vehicle to himself as the definition of lease is handing over possession by the lessor who is the owner to another person who is called lessee. A lessor cannot lease the property to himself. Further what is the outstanding due is not proved in this case. Though Ext.A3 account extract had been produced, it is not at all proved in this case. Since production of statement of account does not mean that the contents are true PW1 is not competent enough to speak about the contents of such account as he is not the person who has prepared it. In the said circumstance the case of the plaintiff is difficult to believe.”13. In view of the above finding the suit was dismissed with cost on 22.1.2003. The said judgment had not been challenged in appeal. No stay order from the appellate court was produced before the trial court. No other evidence was adduced to show that Ext.D2 was set aside in appeal. Resultantly, Ext.D2 has become final between the parties.14. The civil court held that the complainant herein was not the owner of the vehicle and the accused was the registered owner of the vehicle. According to the civil court, an owner of the vehicle cannot lease the vehicle to himself. It was further held that the outstanding amount covered under Ext.P4 cheque which was produced as Ext.A5 in the civil case was not proved. Rightly or wrongly, the civil court entered a finding that the amount covered under Ext.P4 was not recoverable from the accused. The said finding has not been set aside in a process known to law. The finding has become conclusive between the parties. Sitting in revision, this Court has no jurisdiction to examine the correctness of the decision taken by the civil court. Going by the tenor of judgment, it is clear that, what was covered under Ext.P4 is not a legally enforceable debt. The very foundation of the case set up herein is found against the complainant in the civil suit between the very same parties. Merely because criminal case and civil case are maintainable in respect of the very same cheque, the same itself is not sufficient to hold that the amount which has been found not recoverable by a civil court between the same parties can be enforced through criminal proceedings under Section 138 of the N.I.Act.15. In the case on hand, the accused admitted execution of Ext.P4 cheque. His contention is that the amount covered under Ext.P4 is not a legally enforceable debt. The accused adduced evidence before the trial court to show that Ext.P4 cheque had not been issued towards discharge of a legally enforceable debt, but was issued by way of security or any other reason on account of some business transaction between the complainant and the accused. The burden on the part of the accused has been discharged by producing Exts.D1 to D8 before the trial court. DW1 adduced evidence before the trial court to show that he was the owner of the vehicle and the vehicle was repossessed on 22.11.97 illegally by the complainant. He also produced Ext.D7 passbook issued by the complainant. According to him, he paid six installments to the complainant as per Ext.D8. He also produced Ext.D4 to show that he remitted an amount of Rs.71,354/- towards security. His main complaint is that the amount covered under Ext.D4 was not deducted and the complainant presented the cheque issued on account of some other business transaction without deducting the amount paid by the accused. His definite case is that the cheque was issued as a security in connection with some other business transaction and according to him, he was constrained to issue 48 blank cheques in favour of the complainant. After taking into consideration the entire aspects, Ext.D2 judgment was pronounced by the civil court holding that the amount covered under Ext.P4 is not a legally enforceable debt.16. It is true that the standard of proof required in the criminal and civil proceedings are entirely different. Civil cases are decided on the basis of the preponderance of evidence. In a criminal case the entire burden lies on the prosecution and the prosecution is bound to prove the offence beyond reasonable doubt. In Ext.D1 civil case, the cause of action for institution of suit was on the basis of Ext.P4 cheque issued by the accused in favour of the complainant pursuant to a business transaction between the complainant and the accused. The prosecution under Section 138 of the N.I.Act also initiated on the same set of facts. In the civil suit, the complainant was non-suited, finding that the amount was not recoverable from the accused. Hence, the amount which was found not recoverable on merits by a civil court cannot be recovered in a prosecution under Section 138 of the N.I.Act. The judgment of the civil court is relevant in this context to decide as to whether the amount covered under Ext.P4 is a legally enforceable debt or not.17. On analysing the entire evidence, this Court is of the view that the amount covered under Ext.P4 cheque is not a legally enforceable debt and the finding in Ext.D2 judgment is re

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levant under the Scheme of the Evidence Act to decide this case. Further, the accused as DW1 adduced evidence to rebut the presumption contemplated under Sections 118 and 139 of the N.I.Act. DW1 adduced evidence to prove that he issued several cheques in favour of the complainant pursuant to the transactions between the parties as security and one of the cheques was utilized by the complainant to file the complaint under Section 138 of the N.I.Act. Thus, the accused discharged his burden under Sections 118 and 139 of the N.I.Act to prove that the cheque had not been issued towards a legally enforceable debt. Thus, the trial court as well as the appellate court wrongly appreciated the evidence on record. When the conviction and sentence imposed by the courts below against the revision petitioner/accused are based on untenable grounds, it would be just and proper for the High Court to interfere with the findings of the courts below in exercise of powers under Section 401 of the Cr.P.C.18. In the result, the criminal revision petition is allowed. The conviction and sentence imposed against the revision petitioner/accused by the trial court as well as the appellate court are set aside. The revision petitioner/accused is found not guilty of the offence punishable under Section 138 of the N.I.Act and he is acquitted thereunder. Cancelling his bail bond this Court directs that he be set at liberty. If any fine amount is deposited by the revision petitioner/accused during the pendency of this revision, pursuant to an interim order passed by this Court, the same shall be refunded to the revision petitioner/accused in accordance with rules. Pending applications, if any, stand disposed of.
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